Waldron v. SL Industries, Inc.

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

5-26-1995

Waldron v SL Industries, Inc.
Precedential or Non-Precedential:

Docket 94-5282

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 94-5282
___________

REED WALDRON

Appellant,

vs.

SL INDUSTRIES, INC.; SL-WABER, INC.

Appellees.

___________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 92-cv-05445)

___________

ARGUED JANUARY 25, 1995

BEFORE: BECKER, LEWIS and GARTH, Circuit Judges.

(Filed May 26, 1995)

___________

Alice W. Ballard (ARGUED)
Samuel & Ballard
225 South 15th Street
Suite 1700
Philadelphia, PA 19102

Attorney for Appellant
David B. Mulvihill (ARGUED)
Titus & McConomy
Four Gateway Center
20th Floor
Pittsburgh, PA 15222

Attorney for Appellees

Barbara L. Sloan
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507

Attorney for Amicus-appellant, Equal
Employment Opportunity Commission

___________

OPINION OF THE COURT
___________

LEWIS, Circuit Judge.

The district court in this case predicted that, after

St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993), we would

require a plaintiff at summary judgment in a suit brought under

the Age Discrimination in Employment Act, 29 U.S.C. § 621 et

seq., and the New Jersey Law Against Discrimination, N.J.S.A.

§ 10:5-1 et seq., to prove both that his employer's reasons for

terminating him were false and that the real reason for

termination was discrimination. Recent decisions of this court,

including Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), Torre

v. Casio, Inc., 42 F.3d 825 (3d Cir. 1994), and Sempier v.

Johnson & Higgins, No. 94-5208 (3d Cir. Jan. 6, 1995), have

established that this prediction was inaccurate. Because the

district court's legal standard was thus in error, the principal
question for our review is whether under the proper standard, the

defendant was entitled to summary judgment. In other words,

provided that the plaintiff produced sufficient evidence to

establish a prima facie case, did he also provide sufficient

evidence upon which a reasonable jury could determine that either

his employer's reasons for terminating him were false or that

discrimination was more than likely the motivating factor? We

find that the plaintiff, Reed Waldron, presented sufficient

evidence to survive summary judgment, and therefore we will

reverse.

I.

SL Waber, Inc., a subsidiary of SL Industries, Inc.,

manufactures machinery designed to protect sensitive electrical

and electronic equipment. Reed Waldron was employed at Waber

from 1972 through 1986, but was laid off in 1986 because of a

reorganization. In 1989, after two years of work at a competitor

of Waber, he was rehired by Waber as a consultant. He was 61

years old when he was rehired.

In July 1990, Waber found that the employee functioning

as industrial market manager, Scott Hammill, was having

difficulties. Thus, Waber decided to split the industrial market

manager position into two positions separately devoted to

marketing electronic equipment and electrical equipment. Hammill

was given the electronic marketing manager's position, and

Waldron was named electrical marketing manager. In spring of

1991, Hammill voluntarily left Waber, the positions were
reconsolidated, and Waldron was given the reconsolidated position

of industrial market manager.

There is conflicting evidence about whether Waldron

performed his tasks adequately in the industrial market manager

position. Predictably, Waldron contended that he did a good job,

but the company said that he did not vigorously pursue key

accounts and performed poorly during a series of incidents

related to preparation of and presentation to Waber's parent, SL

Industries, of the fiscal year 1992 business plan.

In August 1991, just after the company adopted the 1992

business plan, Waldron was discharged -- at the age of 63. Kevin

Woznicki, vice-president of sales and marketing, apparently told

Waldron that his job had been eliminated, that his former duties

were being distributed between two new positions -- electronics

market manager and electrical market manager -- and that Waldron

was "not the best candidate" for either position, principally

because he did not go after key accounts. Although Woznicki

apparently told Waldron he was terminated (Joint Appendix

("App.") 116), Woznicki first sought and received approval of the

decision from Ronald Mazik, the company's president.

Shortly thereafter, Ed Brown, a telephone sales

representative aged 32, was promoted to the electronics market

manager's position -- that is, one half of Waldron's old job.

The electrical market manager position (the other half) was never

advertised or filled, and within a short time (five to six

months) the company recombined the two positions with Brown in
the consolidated post -- again called industrial market manager,

the title of Waldron's old job.

Waldron sued Waber, claiming that he had been

discharged because of his age in violation of the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,1 and

the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et

seq. ("LAD").2 The company moved for summary judgment, arguing

that, under the "pretext-plus" standard that it predicted we

would adopt for dealing with summary judgment after Hicks,

1
. Section 623(a)(1) of Title 29 of the United States Code
provides that "[i]t shall be unlawful for an employer . . . to
fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1).
2
. The LAD provides:

It shall be an unlawful employment
practice, or, as the case may be, an unlawful
discrimination:

a. For an employer, because of the
race, creed, color, national origin,
ancestry, age, marital status, affectional or
sexual orientation, sex or atypical
hereditary cellular or blood trait of any
individual, or because of the liability for
service in the Armed Forces of the United
States or the nationality of any individual,
to refuse to hire or employ or to bar or to
discharge or require to retire, unless
justified by lawful considerations other than
age, from employment such individual or to
discriminate against such individual in
compensation or in terms, conditions or
privileges of employment . . . .

N.J. Stat. Ann. 10:5-12(a).
Waldron did not have sufficient evidence upon which a jury could

find both that Waber's reasons for firing him were pretextual and

that the real reason for the termination was age-related animus.

The district court agreed, found that the ADEA and LAD claims

were governed by the same standard, and rendered summary judgment

in favor of the company. The district court had jurisdiction

under 29 U.S.C. § 623(a) and 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291.

II.

A.

In St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742

(1993), the Supreme Court addressed a pervasive split that had

developed among the courts of appeals over the proper application

of the scheme established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), for allocating the burdens of production and

presentation of proof in cases involving allegations of

discrimination in violation of Title VII of the Civil Rights Act

of 1964. Under the familiar shifting burdens analysis of

McDonnell Douglas, a plaintiff must initially establish a minimal

prima facie case -- essentially, that he or she is a member of a

protected class and was qualified for an employment position, but

that he or she was either not hired for that position or was

fired from it "under circumstances that give rise to an inference

of unlawful discrimination." Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).3 Once the plaintiff

3
. As the Supreme Court made clear, the precise elements of a
plaintiff's prima facie case may vary with the particular
establishes his or her prima facie case, the burden shifts to the

defendant to articulate one or more legitimate, non-

discriminatory reasons for its employment decision. If one or

more such reasons are proffered, the presumption of

discrimination created by establishment of the prima facie case

is dispelled, and the plaintiff must prove that the employer's

proffered reason or reasons were pretextual -- that is, that they

are false and that the real reason for the employment decision

was discriminatory.

It was the meaning of this last phase of the McDonnell

Douglas scheme that had caused dissention among the courts of

appeals: if a plaintiff proved that an employer's proffered

reasons were unworthy of credence, must the jury return a verdict

in his or her favor, or was it still required to find that

discriminatory animus more than likely caused the employment

decision? In Hicks, resolving a circuit conflict, the Court

decided that although "[t]he factfinder's disbelief of the

reasons put forward by the defendant . . . may, together with the

elements of the prima facie case, suffice to show intentional

discrimination," so that if an employer's proffered reasons for

the employment decision are rejected, "no additional proof of

(..continued)
circumstances. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 n.14 (1973); Teamsters v. United States, 431 U.S. 324, 335-36
& n.15 (1977); Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 253 n.5 (1981). See generally Torre v. Casio, Inc., 42
F.3d 825, 830-31 (3d Cir. 1994) ("the nature of the required
showing to establish a prima facie case of disparate treatment by
indirect evidence depends on the circumstances of the case"
(internal quotation omitted)).
discrimination is required," nevertheless the ultimate burden of

persuasion remains on the plaintiff throughout the case. Id. at

2749. Thus, "a plaintiff's proof of his or her prima facie case

and proof that the employer's proffered reasons are false does

not compel a judgment in the plaintiff's favor." Id.

Although Hicks resolved the issue of whether a

plaintiff is entitled to judgment as a matter of law at trial if

he or she establishes a prima facie case and discredits an

employer's justifications for the employment decision, it did not

address the standard by which summary judgment should be assessed

in a pretext case under the ADEA.4 The district court in this

case noted that we had not yet ruled on this issue, but predicted

that we would side with those courts of appeals that had required

plaintiffs at summary judgment to produce evidence of "pretext-

plus." Waldron v. SL Industries, Inc., 849 F. Supp. 996, 1004

n.11 (D. N.J. 1994). That is, the district court predicted that

at summary judgment we would require plaintiffs to demonstrate"

both that the employer's reasons are false and that the real

reasons were discriminatory . . . ." Id.

Contrary to the district court's prediction, however,

in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), we joined
those of our sister circuits who have read Hicks to require at

4
. Although Hicks was a Title VII case, its analysis applies
to ADEA cases, as well. See McKenna v. Pacific Rail Services,
Inc., 32 F.3d 820, 825-26 & n.3 (3d Cir. 1994) (shifting burden
analysis applicable to Title VII cases also applicable to cases
under ADEA).
summary judgment "pretext-only." Judge Becker noted in Fuentes

that,
[b]ecause the factfinder may infer from the
combination of the plaintiff's prima facie
case and its own rejection of the employer's
proffered non-discriminatory reasons that the
employer unlawfully discriminated against the
plaintiff and was merely trying to conceal
its illegal act with the articulated reasons,
see Hicks, __ U.S. at __, 113 S. Ct. at 2749,
a plaintiff who has made out a prima facie
case may defeat a motion for summary judgment
by either (i) discrediting the proffered
reasons, either circumstantially or directly,
or (ii) adducing evidence, whether
circumstantial or direct, that discrimination
was more likely than not a motivating or
determinative cause of the adverse employment
action.

Fuentes, 32 F.3d at 764.

Thus, we clarified that "if the plaintiff has pointed

to evidence sufficient[] to discredit the defendant's proffered

reasons, to survive summary judgment the plaintiff need not also

come forward with additional evidence of discrimination beyond

his or her prima facie case." Fuentes, 32 F.3d at 764. This
standard is obviously different from that imposed by the district

court, and it will be our responsibility on appeal to assess

whether, under this standard, plaintiff's claims should have

survived summary judgment.5
5
. Although Waber conceded at oral argument that the district
court applied the incorrect legal standard under Fuentes and its
progeny, the company sought in its brief to undercut the strength
of Fuentes' precedential value by contending that it is
inconsistent with two of our other recent decisions: Seman v.
Coplay Cement Co., 26 F.3d 428 (3d Cir. 1994), decided two months
before Fuentes, and Armbruster v. Unisys Corp., 32 F.3d 759 (3d
Cir. 1994). Those decisions, however, are entirely consistent
with Fuentes. See Seman, 26 F.3d at 433 (noting that, under
 B.

At summary judgment, the district court found that

Waldron had established a prima facie case, and Waber does not

contest that issue on appeal. However, the district court

credited Waber with having established the following non-

discriminatory business justification for its decision to

terminate Waldron. Because of economic hardship, Waber was

forced to restructure its industrial marketing business, and one

of the changes involved reverting to the organizational structure

it had formerly used. That is, Waber decided to re-bifurcate the

two segments of the industrial market -- electrical and

electronics -- with each segment having its own manager.

However, Waber decided that Waldron was not the best candidate

for either of the two positions. Having had the chance to assess

Waldron's performance as industrial market manager for more than

a year, the company determined that he was not the best candidate

for either new position primarily because Waldron had not

sufficiently visited "key accounts." The company's conclusion

was confirmed when it was preparing its fiscal 1992 business

plan. Waldron's portion of the business plan was considered
(..continued)
Hicks, "rejection of the employer's proffered nondiscriminatory
reason will permit the trier of fact to infer the ultimate fact
of intentional discrimination, so long as there is a finding of
discrimination. In other words, `[t]he factfinder's disbelief of
the reasons put forward by the [employer] . . . may, together
with the elements of the [employee's] prima facie case, suffice
to show intentional discrimination.'"); Armbruster, 32 F.3d at
783 (recognizing that disbelief in the employer's proffered
explanations, combined with the plaintiff's prima facie case, may
be sufficient to allow a jury to infer the "ultimate fact of
intentional discrimination").
inadequate and needed a "massive overhaul," and when called upon

at a meeting to rehearse his part of the presentation, he was

unprepared. Furthermore, at the conclusion of the presentation

to the management of Waber's parent, SL Industries, Waldron made

comments about increasing sales by increasing sales reps'

commissions that showed that he either did not know -- or did not

agree with -- the direction Waber was pursuing, since Waber's

plan was to increase sales by pursuing "key accounts" -- very

large current or potential customers. Waldron, 849 F. Supp. at

1002.

In reply, Waldron contends that he established both

that Waber's putative justifications were false and that age-

related bias in fact motivated the decision to fire him. We

evaluate Waldron's responses to Waber's explanation below. As we

do, we recall that since this case is before us for review of a

grant of summary judgment, we address the case as if we were the

district court, exercising plenary review of both facts and law.

Additionally, we must view the evidence in the light most

favorable to the nonmovant, giving that party the benefit of all

reasonable inferences derived from the evidence. Torre v. Casio,
42 F.3d 825, 830 (3d Cir. 1994).6
6
. Waber argued to the district court that it should apply the
Fourth Circuit's reasoning in Proud v. Stone, 945 F.2d 796 (4th
Cir. 1991), that because Waldron was 61 years old when hired by
Waber and 63 1/2 years old when promoted prior to termination, a
strong inference existed that discrimination was not a
determining factor for the adverse action taken by the employer.
Although the district court did not rely on Proud, it did "accept
the logic that underlies the Proud inference." Waldron, 849
F. Supp. at 1006 n.14.
 1.

Addressing first the company's reorganization plan,

Waldron contends that the evidence at summary judgment would

permit a jury to reasonably conclude that the reorganization was

simply a way of getting rid of him in favor of a younger

employee, Ed Brown (age 32). Waldron does not dispute that the

company was experiencing economic difficulties during the period

leading up to his dismissal. However, Waldron argues that the

evidence of Waber's post-termination conduct belies the company's

contention that a valid reorganization precipitated Waldron's

termination.

Waldron begins by explaining that the evidence, viewed

in his favor, shows that Waber split the industrial market

manager position into two segments and named Brown to the post of

electronics marketing manager, but it left the other position

open and within one-half year of Waldron's termination, Waber

recombined the two market segments under one title -- industrial

market manager -- with Ed Brown in that position. Waber responds

(..continued)
However, we agree with the position advanced by the Equal
Employment Opportunity Commission as amicus curiae: "where, as
in Proud, the hirer and firer are the same and the discharge
occurred soon after the plaintiff was hired, the defendant may of
course argue to the factfinder that it should not find
discrimination. But this is simply evidence like any other and
should not be accorded any presumptive value." EEOC Br. 22.
Additionally, as the EEOC further notes, it was plausible under
the evidence presented at summary judgment that Waber would hire
Waldron, use his skills for a few years while a younger person
was being "groomed" for his position, then fire Waldron because
of his age. Id. at 22-23. Thus, even if we were inclined to
apply Proud in some circumstances, this case would be an
inappropriate candidate for the presumption.
that Waldron's "facts and surmises" simply show that the company

ultimately decided to adopt a "different organizational structure

which was less expensive than the one it planned to implement at

the time it decided to let him go -- and, as a result of this

further restructuring, Mr. Waldron's former title was ultimately

given to Ed Brown -- a younger employee (albeit one with many

more years of continuous service with Waber)." Appellees' Br.

27-28. But Waber does not provide any evidence in support of its

contention that subsequent to Waldron's discharge the company

adopted a new plan of reorganization. More significantly,

however, Waber's response ignores the inference created by

evidence demonstrating that Waber split Waldron's job, fired him,

offered one-half of his former job to a younger person while the

other half remained unadvertised, and then recombined the jobs

and placed the younger employee in the recombined post. Although

Waber may be able to explain this behavior at trial, a reasonable

jury certainly could conclude that these actions cast sufficient

doubt on the company's contention that Waldron was discharged as

part of a plan of reorganization.7

Waldron also notes with respect to the reorganization

that Waber's business plan for fiscal year 1992, which was worked

7
. Waber conceded at oral argument that there was "no dispute"
that Waber "vacillated" in the course of eighteen months,
asserting that it went back and forth five times in splitting and
recombining the Industrial Market Manager position during the
period leading up to and immediately following Waldron's
termination. The company also explained that Waldron himself was
the beneficiary of many of the vacillations. That would not
excuse, however, the use of a putative reorganization as a ruse
to shunt Waldron out the door.
on by both Woznicki and Mazik and presented to Waber's parent

company just one month prior to Waldron's termination, did not

show the industrial market manager position being split up into

segments. App. 233-34 (Mazik deposition). Waber responds that

the fact that the recently adopted business plan had Waldron's

name in the industrial market manager spot is consistent with its

explanation that it decided not to keep Waldron on in the

reorganization. This shows, the company contends, that the

decision to fire him did not come until his poor performance in

preparing and rehearsing the fiscal 1992 business plan in July.

Yet Waldron's evidence suggests that the company did not intend

to have two positions -- or at least not for long. The

permissible inference is that the reorganization was not planned,

but rather pretextual.

Additionally, Waldron contends that there is evidence

upon which the jury could conclude that the reorganization that

cost Waldron his job demonstrated age-related prejudice by Waber.

Waldron notes that when his predecessor at the industrial market

manager position, Scott Hammill (twelve years his junior), had

difficulties, Waber had found him help by splitting his position

and giving him one half of the industrial market. By contrast,

Waldron notes, when Waber determined to split up Waldron's job

(the same post Hammill had held), Waldron was not offered either

segment of the industrial market, but instead was terminated.

Surprisingly, Waber did not respond to this last

argument in its briefing. Perhaps by way of partial response,

however, Waber asserts the uncontroversial proposition that
"barring an attempt to conceal discrimination," a company "`has

the right to make business judgments on employee status,

particularly when the decision involves subjective factors . . .

that the [c]ompany deems essential' to the position" in question.

Appellees' Br. 28, quoting Healy v. New York Life Insurance Co.,

860 F.2d 1209, 1220 (3d Cir. 1988). That argument begs the

question, however, of whether the reorganization was an attempt

to conceal discrimination.

Viewing all of the evidence in the light most favorable

to Waldron and weighing the parties' arguments, we agree with

Waldron that the evidence presented at summary judgment would

permit a reasonable jury to conclude that Waber's reorganization

was not the reason for Waldron's termination, but rather a

pretext. The vacillations at Waber over whether to have a single

industrial market manager or separate electrical and electronics

managers may have been innocent, but under the evidence presented

at summary judgment, a jury could reasonably question whether the

"reorganization" that ostensibly precipitated Waldron's

termination was in fact just a way of removing Waldron replacing

him in the industrial market manager position with the younger Ed

Brown. Additionally, Waldron's evidence concerning the business

plan is not without force: a jury could reasonably conclude that

Waber's failure to account for a split in the industrial market

manager position in its carefully orchestrated business plan

demonstrates that the reorganization came about because of

Waber's desire to terminate Waldron's employment, rather than as

a factor innocently leading to that result. Thus, there is
sufficient evidence upon which a jury could reasonably determine

that Waber's justification for terminating Waldron because of a

reorganization was implausible and inconsistent.

2.

We turn, therefore, to Waber's contention that its

dissatisfaction with the way in which Waldron pursued key

accounts during his tenure as industrial market manager was part

of the reason why the company terminated Waldron in the

reorganization. According to Waber, it grew frustrated by

Waldron's alleged unwillingness or inability to pursue key

accounts through face-to-face meetings at the headquarters of

such customers and potential customers. Waldron, however,

contends that he submitted substantial evidence at summary

judgment upon which a jury could reasonably determine that

Waber's justification was either a post hoc fabrication or actual

evidence of discrimination. Again, we agree.

Initially, Waldron disputes whether in fact he failed

to visit key accounts. The district court quoted from and relied

upon the testimony of Mazik, in which he stated that Waldron

"`couldn't or wouldn't visit major accounts in the electrical

distribution market . . . .'" Waldron, 849 F. Supp. at 1002

(quoting Mazik Dep.). Waldron testified, however, that he

visited key accounts, and also testified that his requests for

authorization to travel were sometimes rejected by Woznicki.

App. 62-64, 66, 162 (visited accounts), 127, 153-57 (Woznicki

rejected travel requests).
 The district court did not address any of this

testimony at summary judgment -- to the contrary, it stated that

Waldron had "concede[d] that he disregarded the company policy of

calling on key accounts . . . ." Waldron, 849 F. Supp. at 1005.

As support, the district court cited a portion of Waldron's

deposition that, in our view, simply does not support the theory

that Waldron "conceded" anything. See id. (citing Waldron Dep.

at 439); cf. App. at 158-59 (showing context of material quoted

by district court), 162 (Waldron testifies that in year preceding

termination he made between 12 and 14 key account visits to

company headquarters in electrical market and between 4 and 5 in

electronics market).

Nevertheless, this evidence is not ultimately probative

of pretext. Waber submitted testimony suggesting that the

company was dissatisfied with Waldron's efforts at contacting key

accounts in face-to-face meetings at their business locations.

E.g., App. 207, 211, 239. Thus, the fact that Waldron indeed

made key account visits is not probative of whether Waber

believed that he should be doing more in that effort. See Billet
v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (plaintiff's

"view of his performance is not at issue; what matters is the

perception of the decision maker"). Of course, to the extent

that Waldron's testimony tended to show that his supervisor

hampered his efforts to make more key account visits, that

evidence could lead to an inference that Waber intentionally set

goals that Waldron could not meet. Yet Waldron's deposition

testimony on this point was equivocal. When pressed by opposing
counsel, Waldron stated that he had "no idea" where he had wanted

to go on the three or four occasions on which he sought but was

refused authorization to travel. App. 154. Thus, crediting

Waldron's evidence that he was denied such authorization, that

still does not prove that the contemplated travel was for face-

to-face meetings with key accounts, as the company wanted.

Waldron's second thrust at the key account

justification, however, is more powerful. Waldron notes that

despite Waber's contention that focusing on key accounts was an

"edict of the company, especially under Ron Mazik's tenure, and

even prior to that" (App. 208 (Woznicki Dep.)), or alternatively

the "major focus, and that wasn't just for Reed Waldron" (App.

212), Waber replaced Waldron with Ed Brown, an employee who had

performed only as a "back-up" to sales representatives and who

did not have any significant experience making calls to key

accounts. App. 191, 242-43. Additionally, according to Mazik,

Waber did not expect Brown to make key account calls after

replacing Waldron -- Mazik stated that "[w]e didn't think that Ed

Brown had the capabilities to do that." App. 243. And,

according to Mazik, in fact "nobody" performed the job of calling

on key accounts after Waldron's departure. Id.

This evidence points in one of two probative

directions. On one hand, as Waldron argues, the evidence could

lead a reasonable jury to reject Waber's explanation that the

company fired Waldron because he failed to call sufficiently on

key accounts. Given the evidence that despite Waber's ostensible

focus on key accounts, the company elevated (in an admittedly
roundabout way, see supra pp. 12-14) to industrial market manager

an employee with no sales experience (whom it considered

incapable of calling on key accounts), and that no one called

upon key accounts after Waldron was fired, a jury could

reasonably conclude that visiting key accounts was not nearly as

important to Waber as it said it was -- and that Waber's

explanation for firing Waldron was thus unworthy of credence.

Alternatively, as Waldron also argues, one could view

the evidence on key accounts as suggestive of a double standard.

For Waldron, the evidence suggests, visiting key accounts was an

element of the industrial market manager position. For Brown, it

was not.

Waber responds in two ways to Waldron's arguments.

First, it asserts that the evidence, taken as true, would only

support the inference that by the time Brown assumed the title of

industrial market manager, that position had become a job lower

on the organizational ladder with fewer responsibilities, and

visiting key accounts was no longer among them. Appellees' Br.

30. However, Waber provides no citation to the record to support

the suggestion that Brown's job was lower on the organizational

ladder, and we find both of the inferences suggested by Waldron

-- that is, pretext or double standard -- to be at least equally

as plausible as the one offered by Waber.

Second, Waber argues that Waldron's double-standard

argument runs afoul of Fowle v. C & C Coal, a Div. of ITT-
Continental Baking Co., 868 F.2d 59 (3d Cir. 1989). In Fowle,

the plaintiff alleged that he had not been hired as a company
vice president because of his age. The company responded that

Fowle did not satisfy one of the essential criteria of the job --

that is, he lacked the management skills necessary to possibly

replace the president of the company within two to four years.

Id. at 64. Fowle attempted to show that this justification was

pretextual by demonstrating that this ostensible prerequisite was

subsequently relaxed (from two to four years to five to ten

years) as soon as the company found a candidate younger than

Fowle that it wanted to hire. We rejected Fowle's argument,

finding that Fowle's evidence suggested, at most, "an evolution

of the position's specifications" over time. Id. at 66. Waber

apparently believes that, in a similar manner, Waldron's evidence

with respect to key account visits merely demonstrates that the

industrial market manager position evolved over time, but creates

no inference of pretext or discriminatory double standard.

Yet Fowle cannot be read so broadly. If, every time

one candidate for a position was rejected based on some criterion

and another was ultimately hired notwithstanding his or her

failure to satisfy the same criterion we nevertheless permitted

employers to escape liability with the explanation that the job

specifications had simply changed, we would rip a great hole in

the Congressional scheme for affording relief for the victims of

discrimination. Indeed, Fowle itself makes this fact clear in a
manner that distinguishes it from this case. We noted that, even

though the precise contours of the job requirement at issue there

may have changed over time, there was "no evidence that potential

to replace the President -- in whatever time frame -- was not a
requirement" of the successful candidate. Fowle, 868 F.2d at 66.

By contrast, in the case before us, Waldron's evidence suggests

that although visiting key accounts was a job requirement when he

held the industrial market manager position, it promptly ceased

to be one when he left. Thus Fowle does not insulate Waber in

this case.

The district court rejected Waldron's double-standard

evidence based upon a different theory. The district court found

that whereas the typical double-standard case involves objective

criteria, this case involved subjective criteria. Waldron, 849

F. Supp. at 1007. Because the employment decision in this case

involved subjective criteria, the district court reasoned, our

decision in Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983

F.2d 509 (3d Cir. 1992), prohibited the court -- or a jury --

from intruding into and second-guessing Waber's business

decision.

We disagree with this analysis on several grounds.

First, we disagree with the district court's apparent premise

that visiting key accounts was a "subjective" job criterion. The

evidence at summary judgment indicated that it was an objective

and readily assessable criterion. Furthermore, Ezold does not
stand for the proposition that it is always impermissible to

review employers' subjective decision making -- indeed, quite to

the contrary, Ezold contemplates that courts and juries must do

so.

In Ezold, a female associate had been denied
partnership at a law firm because the firm had decided that she
was deficient in legal analysis skills. She sued, alleging sex

discrimination, and the district court agreed and found the firm

liable. We reversed. We cautioned in the course of our opinion

against "interfer[ing] in an otherwise valid management decision"

without some evidence to "cast doubt" on the employer's proffered

reasons. Ezold, 983 F.2d at 527. We focused, however, upon the

district court's failure to stick to the criterion at issue in

the employer's business justification. We found that instead of

determining whether the criterion of "legal analysis skills" had

been applied in a discriminatory manner -- i.e., whether male

associates had been welcomed into the partnership notwithstanding

the firm's belief that they lacked legal analysis skills -- the

district court had impermissibly determined that the plaintiff's

other strengths outweighed any deficiencies in legal analysis.

Id. at 527-28. Thus, in disapproving the district court's

analysis, we did not conclude that it would be impermissible for

the district court to determine whether the criterion of "legal

analysis skills" -- a standard with undeniably subjective

elements -- had been applied differentially. Rather, we stated:
Where an employer produces evidence that the
plaintiff was not promoted because of its
view that the plaintiff lacked a particular
qualification the employer deemed essential
to the position sought, a district court
should focus on the qualification the
employer found lacking in determining whether
non-members of the protected class were
treated more favorably.

Ezold, 983 F.2d at 528. Therefore, Ezold does not stand for the

proposition that courts and juries are foreclosed from assessing
whether an employer created a double standard using one or more

subjective criteria, but instead stands for the opposite

principle.

Thus, it is evident that Waldron also cast substantial

doubt upon Waber's proffered justification that it decided to

terminate Waldron because of his failure to visit key accounts

with sufficient regularity. Indeed, viewed in the light most

favorable to him, Waldron's evidence suggests either that failure

to visit key accounts with regularity was not really a reason for

Waldron's termination (that is, the reason is pretextual) or that

Ed Brown was treated more favorably than Waldron, suggesting not

just pretext, but in fact discriminatory bias.

3.

As we have seen, Waber contended that economic hardship

forced a restructuring of the industrial market manager position,

and that the decision not to retain Waldron for either of the two

positions was motivated largely by the fact that Waldron had

failed to visit key accounts with sufficient regularity.

Appellees' Br. 8-9. The company contends, however, that the

decision to terminate Waldron "became inescapable during June

1991 as Waber was preparing to present its business plan" for

fiscal year 1992. Id. at 9. Waber contends that Waldron showed

his weaknesses as an employee at this point in three areas:

(a) drafting his portion of the business plan in an inadequate

manner that required substantial rewriting by his supervisors;

(b) failing to perform adequately at a dress rehearsal of the

presentation of the business plan to corporate officers of
Waber's parent; and (c) making stray comments at the actual

presentation of the business plan that suggested that Waldron was

either unaware of or disagreed with the direction in which the

company was headed.

Initially, we note that none of these factors was

presented to the district court or argued to us as an independent

justification for Waber's decision to terminate Waldron. Rather,

each was ostensibly a proverbial straw which, taken together,

broke a back weakened by Waber's need to reorganize and Waldron's

failure to serve key accounts in the manner desired by his

superiors. Having produced evidence upon which a jury could

reasonably conclude that both the reorganization and key account

justifications were pretextual (and in the latter case possibly

evidence of bias), Waldron thus has also undermined the vitality

of the other proffered justifications that we turn to now.

However, since Waldron does not rest merely upon his refutation

of Waber's principal business justifications for the termination

of his employment, but rather provides particularized responses

to these "final straw" justifications, we address his evidence

and arguments below.

(a)

At summary judgment in the district court, Waber relied

upon the deposition testimony of Woznicki to support its

contention that Waber was discouraged by Waldron's draft of his

portion of the business plan for fiscal year 1992, which required

a "massive overhaul" by Woznicki and Mazik to get it in shape to

present to Waber's parent company. See Waldron, 849 F. Supp. at
1002; see also App. 216. This dissatisfaction, Waber contended,

helped to tilt the balance against retaining Waldron.

Waldron responds that he presented evidence by way of

his own testimony that no changes were made his portion of the

business plan. App. 173. Waber criticizes Waldron's testimony

as "self-serving," but the Supreme Court has made it clear that

self-serving testimony may be utilized by a party at summary

judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)(noting that plaintiff may create material issue of fact by

proffering, inter alia, "her own affidavits"). Furthermore, it

is obvious that the testimony is no more self-serving than

Woznicki's was on behalf of Waber. Waldron's testimony was under

oath and subject to cross examination, just as was Woznicki's.

Since no other evidence was presented aside from the two

deponents' competing recollections, we see little reason to

credit one and reject the other. Instead, we see this as a

disputed material fact issue to be resolved at trial.

Waber also states that the issue was not whether

Waldron believed that he wrote his portion of the business plan

adequately, but rather whether Woznicki and Mazik were satisfied

with it. Yet Waldron's testimony, if believed, establishes that

Woznicki and Mazik did not rewrite the business plan, which casts

serious doubt on Waber's contention that it was dissatisfied with

Waldron's efforts.

(b)

With respect to the so-called "dress rehearsal" of

Waber's fiscal 1992 business plan, Waldron concedes that he
performed poorly -- "I . . . came off as being unprepared, which

I was." App. 175. Waldron maintained at summary judgment,

however, that evidence demonstrated that he was "tripped up" by

Mazik and "singled out" at the meeting -- which he had not been

told was a dress rehearsal -- as the only one forced to make his

presentation. App. 173-75.8 Again, Waber contends that this

evidence was "self-serving" deposition testimony, but we see no

reason for not finding that it, too, creates a disputed issue of

material fact.

(c)

Finally, Waber, using the testimony of Woznicki, argued

that Woznicki and Mazik also were dissatisfied with Waldron's

performance at the actual presentation of the fiscal 1992

business plan to Waber's parent company, SL Industries.

Specifically, Woznicki stated that, after completing his

presentation, Waldron mentioned that the way to expand Waber's

business was "through [sales] rep[resentative] commission

8
. At oral argument, Waldron made an additional argument not
present in his briefs: to the extent that the meeting at which
he was forced to make his impromptu presentation was a dress
rehearsal, a jury could reasonably infer that Waber's reaction to
Waldron's mistakes were stereotypical. That is, dress rehearsals
are meant to shake out the bugs and allow people to make
mistakes, but Waber reacted in a manner that suggested that it
believed that when an older employee makes a mistake, he cannot
learn. Waldron's counsel might be able to make this argument to
the jury, of course, but we refuse to rely upon it because it is
premised on the theory that mistakes are expected at dress
rehearsals and were tolerated when made by employees other than
Waldron at the rehearsal in question, assuming that the meeting
was in fact a dress rehearsal. Based on the record before us,
that is speculation, not evidence.
increases." App. 217 (Woznicki Dep.). This comment, Woznicki

stated, made him and Mazik look bad because that was not what the

company planned to do. Id. The comment was especially damaging

because this was Mazik's first presentation to Waber's parent

company, and he had wanted everything to go flawlessly. Id.

Waldron responded at summary judgment, however, by

pointing to his deposition testimony, in which, apparently

reading from the business plan itself, he noted that "[r]evamping

[sales representatives'] commissions to reward growth" was in the

plan. App. 177. Waldron also notes that in the same memorandum

to industrial sales representatives in which Woznicki announced

Waldron's termination, Woznicki also announced an increase in

sales representatives' commissions as a promotional effort (App.

192), suggesting that increasing commissions was not inconsistent

with Waber's growth strategy. This evidence could permit a jury

to conclude that it was implausible that Woznicki and Mazik felt

that Waldron's comments at the formal presentation concerning

increased commissions showed that he was unaware of or in

disagreement with the company's focus.

4.

Finally, we note Waldron's additional argument that he

has evidence of age-related animus or bias in the form of a

comment made to him by Mazik. Waldron testified that five months

prior to his termination, in a meeting in which Mazik promoted

Waldron to industrial market manager, Mazik told him, "I want you

to lose weight. He told me that it'll make you feel better.

It'll make you look younger." App. 129. The district court
found that "Mazik's comment that plaintiff might consider losing

weight in no way indicates that plaintiff's termination was

motivated by age." Waldron, 849 F. Supp. at 1008. Noting that

the comment was five-months prior to Waldron's termination and in

the context of a promotion, and also Waldron's concession that

Mazik did not condition continued employment upon satisfying

Mazik's desires, the court concluded that "we believe the comment

to be a stray remark entitled to little if any weight . . . ."

Id., citing Ezold, 983 F.2d at 545.

We disagree. Crediting the evidence, the comment was

made by the person who, according to Waber itself (Appellees' Br.

6), ultimately approved the decision to terminate Waldron.

Furthermore, although the comment was made five months prior to

Waldron's termination, it occurred at a time when, according to

Mazik himself, Woznicki was already arguing to him that Waldron's

employment should be terminated. App. 236.9 Thus, we believe

that the comment may be entitled to some weight when considered

by the jury, although standing on its own it would likely be

insufficient to demonstrate age-related animus. In other words,

the comment is not irrelevant, especially when coupled with
Waldron's other evidence of discrimination, which demonstrates a

double standard was applied vis-a-vis Brown as to visiting "key

9
. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509
(3d Cir. 1992), is distinguishable on both grounds mentioned in
the text: the discriminatory comment in that case was made by a
non-decisionmaker, five years prior to the decision to refuse the
plaintiff in that case admission into the law firm partnership.
Ezold, 983 F.2d at 545.
accounts." A reasonable jury could conclude that this evidence

of discrimination, coupled with Waldron's prima facie case,

proved that age discrimination was more likely than not a

determinative factor in Waber's decision to terminate Waldron's

employment.

C.

To summarize, Waldron provided sufficient evidence upon

which a reasonable jury could determine that Waber's proffered

justifications for its decision to terminate Waldron's employment

were unworthy of credence. Waldron has cast doubt upon Waber's

contention that the need for a business reorganization

precipitated Waldron's firing, and he also has produced evidence

upon which the jury could conclude that Waldron was not let go

because of dissatisfaction about his alleged failure to visit key

accounts with sufficient regularity. Indeed, a jury could

permissibly infer from Waldron's evidence concerning key accounts

that Waber applied a double standard with respect to Waldron and

the much younger Ed Brown. By undercutting these principal

justifications for terminating Waldron's employment, Waldron has

also provided reasonable grounds upon which a jury could reject

as weak and implausible Waber's three ostensible "final straws"

-- Waldron's alleged poor draftsmanship on a portion of the

business plan, his poor performance at a putative dress rehearsal

of a presentation of that plan, and the dissonance ostensibly

caused by Waldron's offhand comments after formal presentation of

the plan. Additionally, however, as we have just discussed,

Waldron has produced particularized evidence upon which a jury
could reasonably conclude that each of these ostensible last

straws is unworthy of credence.

Furthermore, this record is not without evidence which

tends to support not just pretext, but pretext for

discrimination. As we discussed at greater length above, a jury

could reasonably infer that Waldron's evidence with respect to

key accounts demonstrated that Waber imposed a double standard.

Mazik's comment that he wanted Waldron to lose weight because it

would make him look younger takes on a more suspicious cast when

coupled with evidence that Woznicki was already pushing Mazik to

fire Waldron when the comment was made. If a jury then reflected

that Waldron was not kept on when the industrial market manager

position was split in two because he failed to visit key

accounts, but that young Ed Brown was elevated ultimately to a

reconstituted industrial market manager position without having

to call upon key accounts, the jury might reasonably infer that

Brown's youth excused his inability to service the key accounts.

Thus, even if we were permitted to ignore Fuentes and its progeny

and apply a "pretext-plus" standard, we nevertheless would

conclude that Waldron satisfied that standard, as well.

Because Waldron produced sufficient evidence to survive

summary judgment on his ADEA claim, we will reverse the district

court's judgment in favor of Waber on that claim.

III.

The district court granted summary judgment not only on

Waldron's ADEA claim, however, but also on his claim under the

New Jersey Law Against Discrimination, reasoning that the LAD and
ADEA "are governed by the same standards and burden of proof

structures applicable under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq." Waldron, 849 F. Supp. at 1000,

citing Erickson v. Marsh & McLennan Co., 117 N.J. 539, 569 A.2d

793 (1990), and Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 538

A.2d 794 (1988). Thus, we must assess whether summary judgment

in the LAD claim must be reversed as well.

Since the district court's opinion in this case, we

have predicted in McKenna v. Pacific Rail Services, Inc., 32 F.3d

820 (3d Cir. 1994), that the New Jersey Supreme Court would adopt

Hicks's "clarification of the test to be applied in federal

discrimination cases in interpreting the LAD . . . ." Id. at

824. This is consistent with the district court's hypothesis

about the similarities between federal and New Jersey law

relating to age discrimination. McKenna, however, involved a

jury trial under the LAD, and we reversed because the district

court had not provided jury instructions consonant with Hicks.

It did not involve the standard for summary judgment under the

LAD, and the parties here did not brief the issue of whether the

New Jersey Supreme Court would adopt Fuentes, just as we
predicted in McKenna that it would adopt Hicks.

Largely for reasons discussed in McKenna, we believe

that the New Jersey Supreme Court would adopt our reasoning in

Fuentes as governing what evidence must be produced by a

plaintiff to survive summary judgment in an indirect evidence

case after Hicks. As we noted in McKenna, the New Jersey Supreme

Court has not only adopted the McDonnell Douglas framework for
evaluating discrimination cases based upon indirect evidence, but

has consistently looked to federal courts for guidance about the

application of the shifting-burdens analysis. McKenna, 32 F.3d

at 827. Where the New Jersey Supreme Court has departed from

federal precedent, it has often done so in order to lessen the

burdens on plaintiffs. Id. at 827-28. And indeed, consistent

with Fuentes, we stated in McKenna that a plaintiff's proof of a

prima facie case and rebuttal of an employer's justifications

"may suffice [to carry a plaintiff's ultimate burden of

persuasion] if the factfinder believes that the employer offered

false reasons to conceal unlawful discrimination. . . ." Id. at

831.10 These considerations lead us to conclude that the New

Jersey Supreme Court would adopt the more liberal "pretext-only"

standard enunciated in Fuentes for determining a plaintiff's

burden at summary judgment, rather than the more demanding

"pretext-plus" standard adopted by some of our sister circuits.

Thus, what we said about Waldron's ADEA claims also

applies here, and for the reasons provided in Section II, supra,

10
. Of course, in McKenna we predicted that the New Jersey
Supreme Court would adopt Hicks, instead of some more lenient
rule, because of the following: (1) in New Jersey, as in federal
law, plaintiffs always retain the ultimate burden of persuasion
with respect to claims of discrimination (McKenna v. Pacific Rail
Service, 32 F.3d 820, 828 (3d Cir. 1994)); (2) New Jersey and
federal rules relating to presumptions are similar (id. at
829-30); and (3) the New Jersey Supreme Court's decision in
Goodman v. London Metals Exch., Inc., 86 N.J. 19, 429 A.2d 341
(1981), was consistent with the Hicks formulation of a
plaintiff's burden at trial (McKenna, 32 F.3d at 830-31). Those
factors in no way suggest that the New Jersey Supreme Court would
refuse to adopt Fuentes.
we find that Waldron's LAD claims should have survived summary

judgment, as well.

IV.

In conclusion, we find that Waldron proffered

sufficient evidence to survive summary judgment on his ADEA

claims under Fuentes. We also predict that the New Jersey

Supreme Court would adopt Fuentes as a proper articulation of a

plaintiff's burden at summary judgment for claims under the LAD.

Thus, we will reverse the district court's judgment in its
entirety and remand this case for further proceedings consistent

with this opinion.